Perry v. Whiterock CA1/3

Filed 3/5/14 Perry v. Whiterock CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

DESIREE PERRY, Plaintiff and Respondent, A139450 v. EMILE WHITEROCK, (Mendocino County Super. Ct. No. SCUKCVSP 11-59522) Defendant and Appellant.

A mother with sole physical custody of her children sought to relocate to Louisiana where her new husband obtained employment. The children’s father opposed the relocation and filed a modification motion to gain physical custody. Following an evidentiary hearing, the court denied the father’s motion to restrain the relocation and to modify custody. We shall affirm the order. Statement of Facts and Procedural History The record is incomplete and the parties’ briefs provide only a skeletal outline of testimony elicited at a single hearing. The following facts appear in the limited documents provided to us. In December 2011, Desiree Perry (Mother) filed a civil paternity action against Emile Whiterock (Father). The parties were never married but lived together for many years. It appears that paternity was proven or admitted because the parties agree that Mother and Father are the parents of three children who, at the time of the hearing in 2013, were ages 2, 5 and 13. In October 2012, the court issued an order awarding the parents joint legal custody and Mother sole physical custody. Father was granted visitation with the children. In

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February 2013, Mother’s husband was offered a job in Louisiana. In April 2013, Mother filed with the court a request to relocate the children to Louisiana and to modify visitation. Father opposed relocation and, in May 2013, petitioned for modification of custody to award him sole legal and physical custody. The court conducted an evidentiary hearing over the course of four days in June and July 2013. Mother and Father were each represented by counsel. Eleven witnesses testified, including Mother and Father. On July 23, 2013, the court filed its order denying Father’s petition to restrain the relocation and to modify custody. Mother’s request for relocation was granted. Mother was awarded sole physical and legal custody. Father was granted regular visitation and daily video teleconferencing. On August 1, 2013, Father filed a timely notice of appeal challenging the court’s order. Discussion General principles A parent who has been awarded sole physical custody of a child by way of a final judicial custody determination has the presumptive right to move away with the child. (Fam. Code, § 7501; In re Marriage of Burgess (1996) 13 Cal.4th 25, 35.) “Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements – and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker – weigh heavily in favor of maintaining’ that custody arrangement.” (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 956.) A court may restrain a custodial parent’s relocation of a child only if relocation “would prejudice the rights or welfare of the child.” (Fam. Code, § 7501, subd. (a).) The noncustodial parent “bears the initial burden of showing that the proposed relocation of the child’s residence will cause detriment to the child, requiring a reevaluation of the existing custody order.” (In re Marriage of Brown and Yana, supra, 37 Cal.4th at pp. 959-960.) “If the noncustodial parent makes the required initial showing of detriment, the court is then obligated to ‘perform the delicate and difficult task of determining